Citation Nr: 1413539
Decision Date: 03/31/14 Archive Date: 04/08/14
DOCKET NO. 10-48 507 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUES
1. Entitlement to service connection for a recurring skin rash.
2. Entitlement to service connection for a cervical spine disorder.
REPRESENTATION
Appellant represented by: Oklahoma Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Hager, Counsel
INTRODUCTION
The Veteran served on active duty from September 1981 to September 1985 and from December 1990 to April 1991. The Veteran also had periods of active duty training and inactive duty training, as discussed in more detail below.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma which, among other things, denied entitlement to service connection for a skin disorder, neck injury, and bilateral hearing loss.
In February 2012, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. During the hearing, the representative indicated that the Veteran was withdrawing the claim of entitlement to service connection for bilateral hearing loss. See Hearing Transcript, at 2. As an appeal may be withdrawn on the record by the Veteran's authorized representative at a hearing at any time before the Board promulgates a decision, the claim for entitlement to service connection for bilateral hearing loss is deemed withdrawn. 38 C.F.R. §§ 20.202, 20.204 (2013).
During the hearing the Veteran also indicated that he wished to pursue a claim of entitlement to service connection for a shoulder disorder. Hearing Transcript, at 20. In a February 2012 letter, discussed in more detail below, Dr. Marouk indicated that the Veteran had neck weakness with pain going to the back and shoulders. In June 2009, VA denied entitlement to service connection for bilateral shoulder and back disabilities. The Veteran filed a timely notice of disagreement and VA issued an October 2010 statement of the case as to these issues, but in his December 2010 substantive appeal (VA Form 9), the Veteran indicated that he had read the statement of the case and was only appealing as to the cervical spine, skin disorder, and hearing loss. The June 2009 denial of the claims for service connection for bilateral shoulder and back disabilities thus became final. 38 U.S.C.A. § 7105(d)(3) (West 2002). The issues of whether new and material evidence has been submitted to reopen the claims for service connection for bilateral shoulder and back disabilities have been raised by the evidence of record but have not been adjudicated by the agency of original jurisdiction. The Board therefore does not have jurisdiction over these issues and they are referred to the agency of original jurisdiction for appropriate action.
The Veteran also submitted additional evidence at the time of the hearing. As the Board is granting the claims on appeal in full, it need not consider whether a remand for initial RO review of this evidence is warranted. 38 C.F.R. § 20.1304(c) (2013).
FINDINGS OF FACT
1. The evidence is at least evenly balanced as to whether the Veteran has a recurrent skin rash that is related to service.
2. The evidence is at least evenly balanced as to whether the Veteran has a current cervical spine disorder related to a neck injury suffered while on active duty training.
CONCLUSIONS OF LAW
1. With reasonable doubt resolved in favor of the Veteran, a recurring skin rash was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).
2. With reasonable doubt resolved in favor of the Veteran, cervical disc disease was incurred in active service. 38 U.S.C.A. §§ 101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). As the Board is granting the only claims being decided herein, discussion of whether VA complied with its notification and assistance duties pursuant to the VCAA is unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). The Board notes, however, that the RO determined that the Veteran's service treatment records were missing and could not be located. The Veteran submitted copies of the records in his possession. In these circumstances, VA's duty to consider carefully the benefit-of-the-doubt rule is heightened, and the Board has done so in the decision granting benefits below. Milostan v. Brown, 4 Vet. App. 250, 252 (1993).
Analysis
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Active military service includes active duty, any period of active duty training during which the individual concerned was disabled from a disease or injury incurred in the line of duty, and any period of inactive duty training during which the individual concerned was disabled from an injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a).
Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an injury, disease, or event that occurred during active military service. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).
The Veteran claims that he has a recurring rash that is due to his second period of service, during which he was recalled to active duty in support of Operation Desert Shield/Storm. VA and private treatment contain diagnoses of a recurring rash.
There is also a February 2012 opinion from Dr. Marouk indicating that it was likely that the Veteran's recurrent rash is due to exposure to fumes from oil well fires to which the appellant was exposed during his Desert Storm service. Dr. Marouk cited two medical articles in support of his conclusion. There is a similar opinion from a VA physician in a February 2012 letter to the Veteran. There is no contrary medical opinion in the evidence of record. The evidence is thus at least evenly balanced as to whether the Veteran's recurring skin rash is related to service. Therefore, with reasonable doubt resolved in his favor, entitlement to service connection for recurrent skin rash is warranted. 38 U.S.C.A. § 5107(b).
The Veteran also claims that his current cervical spine disorder is related to a neck injury he suffered during active duty training. There are multiple lay statements recounting a neck injury the Veteran suffered during Reserve training. There is also an April 2005 line of duty determination indicating that the Veteran was on individual duty for training orders when the injury occurred and that, "[I]t has been determined that the injury was incurred in line of duty." In a February 2012 letter, Dr. Marouk noted that the Veteran suffers from cervical disc space narrowing with posterolateral osteophyte formation that was likely caused by his neck injury. There is no contrary medical opinion in the evidence of record. The evidence is thus at least evenly balanced as to whether the Veteran's cervical spine disorder is related to an injury suffered on active duty training. Therefore, with reasonable doubt resolved in favor of the Veteran, entitlement to service connection for cervical spine disorder is warranted. 38 U.S.C.A. § 5107(b).
ORDER
Entitlement to service connection for recurring skin rash is granted.
Entitlement to service connection for cervical spine disorder is granted.
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DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs